State Asks Justices to Lift Stay in Harris Case : Supreme Court: California lawyers argue that there is no legal or moral reason to block execution of killer.

Lawyers for the state of California urged the U.S. Supreme Court on Saturday to lift an indefinite stay of execution granted to San Diego murderer Robert Alton Harris, maintaining “there is no legal or moral reason” for preventing his death penalty from being carried out as scheduled.

Harris had been scheduled to be executed at 3 a.m. Tuesday at San Quentin prison.

At a news conference in San Francisco, state Atty. Gen. John K. Van De Kamp said he expected the high court to act on the stay on Monday. If it overturns the stay, he said, the execution “would go forward” as originally scheduled.

“We are asking the Supreme Court to bypass the 9th Circuit entirely and make a final ruling on all of Robert Harris’ appeals,” Van De Kamp said.

The state’s 40-page motion arrived at the U.S Supreme Court Saturday morning. With evident exasperation, the state’s attorneys pointed out that Harris’ case has been in the courts for more than 11 years and appeals of his death sentence already have been turned down by the nation’s high court four times.

The motion was referred to Justice Sandra Day O’Connor, who handles emergency petitions from Western states. In death penalty cases, the motions typically are copied and delivered to the other eight justices as well. The justices need not meet to consider such requests, and if past practice if followed, they will act quickly on the state’s motion in the Harris case.

The court could act on the state’s request as early as Monday morning.

As the legal maneuvering continued, Harris remained in a special Death Row cell reserved for men who are about to be executed. Guards continue the so-called death watch, monitoring Harris’ status several times an hour.

The scheduled early Tuesday morning execution is “still solid as far as we’re concerned until the attorney general tells us differently,” said Lt. Cal White, a San Quentin prison spokesman.

In recent years, the Supreme Court’s conservative leaders have shown increasing frustration with death penalty litigation, especially frenzied, last-minute appeals.

Had Harris failed on Friday in his latest appeal to the U.S. 9th Circuit Court of Appeals in San Francisco, the Supreme Court was considered very likely to have allowed his execution to proceed.

But now the justices are faced with a different decision: whether to overturn a ruling by U.S. 9th Circuit Court of Appeals Judge John T. Noonan, a 1985 appointee of President Ronald Reagan.

Lawyers for Harris, in their appeal to Noonan, contended that when a jury in 1979 was considering whether to sentence him to life in prison or death, two defense psychiatrists did not competently analyze his mental state.

Harris’ lawyers said the psychiatrists failed to conduct examinations that would have shown that the convicted killer suffered from organic brain damage and other disorders that drove him to act on impulse, a fact that could have caused a sentencing jury to feel some mercy for him.

That claim was rejected Wednesday by U.S. District Judge William B. Enright of San Diego, but Noonan said it raised a “debatable” issue that should be considered further by the three-judge panel of the appeals court.

The effect of Noonan’s order, unless overturned by the high court by Monday evening, will be to put off Tuesday’s scheduled execution indefinitely.

Even before Friday’s ruling, the state’s lawyers have been irked at the U.S. 9th Circuit Court of Appeals, which presided over Harris’ case from 1982 until September, 1989. Then, when all of Harris’ pending claims were denied by the 9th Circuit, the case quickly moved to the Supreme Court, where it was denied as well. That action appeared to clear the way for California’s first execution in 23 years.

But the outlook changed Friday when Noonan, acting on a new claim, issued his stay.

Van de Kamp said that, in Harris’ latest appeal, the condemned slayer is merely trying to “second guess” the psychiatric experts who examined his mental condition before his trial in 1979.

“If this ruling stands, we fear that the whole criminal appeals system will simply grind to a halt,” the attorney general declared. “Every defense attorney worth his or her salt will go shopping for psychiatrists willing to disagree with earlier diagnoses. Then the new psychiatrists can be challenged and the whole cycle can start again--an endless daisy chain of delay.”

Harris, 37, was convicted of the July, 1978, murders of John Mayeski, 16, and Michael Baker, 16.

Because “there has never been a question that Robert Alton Harris killed the two helpless victims in cold blood . . . and there is no evidence the proceedings before the California courts were constitutionally defective in any way, the court of appeals (Noonan) improvidently granted the stay of execution,” the state’s motion concluded.

“We are asking the Supreme Court to bypass the 9th Circuit entirely and make a final ruling on all of Robert Harris’ appeals,” Van de Kamp said.

Harris’ lawyers are due to file a response to the state’s motion today.

If the Supreme Court fails to overturn the stay until after the scheduled execution date passes on Tuesday, the state would have to go back to a state trial court and seek a new execution date 30 to 60 days later.

But Van de Kamp said there is another, “more likely” option that could force a swifter execution. Gov. George Deukmejian could grant a limited reprieve that would last only until the stay was lifted. Then, said the attorney general, “the execution could take place the day following the removal of a stay.”

Van de Kamp, noting that any such decision was up to the governor, said it was possible Deukmejian would issue such a reprieve if the Supreme Court has not lifted the stay by late Monday.

Because California has not had an execution since 1967, the Harris case has attracted extraordinary attention.

For the Supreme Court justices, being faced with late-night or weekend decisions upon which a man’s life depends has become something of an agonized routine.

In speeches and law review articles, Chief Justice William H. Rehnquist and former Justice Lewis F. Powell Jr. have argued that the federal court review of death penalty cases needs serious reform. They contend that the current system prompts endless litigation and makes a “mockery” of the courts.

Under the current system of review, derived from the Habeas Corpus Act of 1867, a prisoner can go to a federal court at any time to challenge his conviction or sentence as being unconstitutional in some way.

In death penalty cases in which the executions ultimately were carried out, the appeals process has lasted an average of eight years after the sentence is pronounced.

As an execution date draws near, defense lawyers are entitled to go back to a federal court and raise a slew of “new” constitutional challenges. If the last-minute challenges raise an issue that is “debatable,” a federal judge can block the execution to reconsider that aspect of the case.

That is what Noonan did Friday.

Rehnquist and Powell have proposed a measure, now before Congress, that would give Death Row inmates a single six-month opportunity to raise constitutional challenges in the federal courts. Under the plan, once all of the claims have been heard and rejected at all three levels of the federal court system, the case would be over. A state would then be free to carry out an execution.

A version of the Rehnquist plan is expected to be considered in April by the full Senate as part of an anti-crime package.

Rehnquist and other justices in recent rulings also have made it far more difficult for Death Row inmates to appeal successfully in the federal courts. Last month, the justices, on a 5-4 vote, said they would not apply new constitutional rulings retroactively to benefit Death Row inmates.

Savage reported from Washington and Hager from San Francisco. Times staff writer Dan Morain contributed to this story.